As the euobserver reported last week (01.07.2008), EU Member States are closely monitoring a forthcoming ECJ judgement. In 2000 a German student, Jaqueline Foerster, went to study in the Netherlands. She met the criteria for receiving a Dutch grant but was deemed to no longer to meet them in 2005 and was told to repay part of the grant. The problem though was that Dutch students in her position in 2005 would not have been asked for repayments. The difference was due solely to nationality. She challenged the decision and the ECJ will deliver its judgement on the 10th of July.

This is not the first case in this area but the ECJ ruling will develop from its decision on the Bidar case in 2005. Dany Bidar, a French student, had been refused a UK scholarship but in the end the Court ruled that because he could demonstrate integration in the UK, he should have been treated in the same way as a UK national.

Both of these cases involve foreign nationals who can demonstrate some degree of assimilation but there are other ECJ rulings which raise other questions. Austria has been judged in breach of EU law by setting restrictions on German medical students who would qualify in Austria but go on to practice in Germany thereby creating conditions of Austrian state support for the German health care system. In Belgium, the French Community adopted quotas for nine areas including medicine for fear of an influx of French students undermining the long term viability of its health care provision.

As the euobserver says, the ECJ rulings on grounds of non-discrimination and freedom of movement effectively trump the lack of an EU treaty mandate to determine the content or organisation of education systems. National arrangements have to be legitimated as necessary and proportionate although it is the ECJ which will decide whether they have successfully done this or not.

What is happening then is two things. Firstly that incrementally, the viability of separate national arrangements for student support (and of health and welfare systems too) comes into question. It is the difference in the arrangements between member states which encourage a degree of scholarship tourism. Secondly, the lack of arrangements for ensuring that the payback from investments in student support can be captured produces a pressure to develop common EU arrangements. A Commission paradigm of fees, grants and loans is not just a discourse then, it gets material and institutional support from the tensions and contradictions of the bigger EU mobility, non-discrimination, ‘necessary’ and ‘proportionate’ legal principles. The devil is in the detail and EU Member States are following the case closely because of its implications for some high stakes policy domains including Higher Education.